SSHD V AKAEKE [2005] EWCA Civ 947
FACTS:-
The claimant entered the country illegally not later than November 1994. She claimed to have been persecuted in Nigeria, and made a claim for asylum which was refused in December 1995. In February 1996 she married her present husband, who was a British citizen. Her application to remain on the basis of her marriage was refused in September 1996, because the marriage post-dated enforcement action. Further claims were made and rejected. In December 1998 she was detained pending removal, but was released following an application for judicial review of the Secretary of State's rejection of her latest claim. That application was dismissed. She then made a further application in February 1999 to remain on the basis of her marriage, relying also on Article 8 of the Convention (although at this time the Human Rights Act 1998 had not come into force). That application was not determined for over three years. There was then a successful appeal by her to the adjudicator, followed by an unsuccessful appeal by the Secretary of State to the IAT, the decision on which was given in August 2003.
JUDGMENT::-
Lord Justice Carnwath said that in the case of Huang v Secretary of State [2005] EWCA Civ 105, it was established that a tribunal in such a case, when exercising jurisdiction over both fact and law, was not bound by the Secretary of State's assessment of proportionality, but must form its own judgment on the issue. It was emphasised that this did not entitle the tribunal to question the merits of immigration policy, which was set by the immigration rules, under the mandate given by Parliament. An adjudicator could in a proper case allow an appeal against removal on Article 8 grounds –
"… if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the Appellant's favour, notwithstanding that he cannot succeed under the rules".
The Adjudicator and the Immigration Appeals Tribunal held that taking into account the delay and the other factors in the case, it would be disproportionate for the claimant to be removed from the UK.
Carnwath LJ referred to the case of Cooke v Secretary of State for Social Security [2002] 3 All ER 279, where Hale LJ commented on the need for the courts to take "an appropriately modest view" of their supervisory role, when dealing with such specialist tribunals.
It was also important that such appeal structures had a link to the ordinary court system, to maintain both their independence of government and the sponsoring department and their fidelity to the relevant general principles of law. But the ordinary courts should approach such cases with an appropriate degree of caution. It was quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner would have got it right.
Similar caution was advocated by the House of Lords in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, when Lord Hoffmann criticised the Court of Appeal for interfering with the decision of the Commissioners on the interpretation of the provisions relating to overpayments.
As Lord Denning recognised, the courts of course retained a vital role as final arbiters in relation to genuine issues of law, such as the interpretation of the relevant statutes, and in relation to the overall fairness of the procedures. However, they should be cautious before interfering with decisions on matters within the special expertise and competence of the Tribunal. In this field, such matters included, not only the evaluation of the difficult and often harrowing evidence produced in support of individual claims, but more generally questions of general principle relating to the conditions in particular categories of claimant or particular countries.
Judgments on questions of proportionality in particular cases were likely to fall into the same category. Within the parameters laid down in Huang, the tribunal, against the background of its day-to-day experience, was much better placed than the courts to judge whether the circumstances of a particular case were sufficiently exceptional to justify a departure from the ordinary policy approach. That applied not only to the assessment of the circumstances of a particular applicant, but also to judgments about the management of the system by the Secretary of State.
For these reasons, Carnwath LJ would dismiss the appeal. Lord Justices Rix and Chadwick agreed.
FACTS:-
The claimant entered the country illegally not later than November 1994. She claimed to have been persecuted in Nigeria, and made a claim for asylum which was refused in December 1995. In February 1996 she married her present husband, who was a British citizen. Her application to remain on the basis of her marriage was refused in September 1996, because the marriage post-dated enforcement action. Further claims were made and rejected. In December 1998 she was detained pending removal, but was released following an application for judicial review of the Secretary of State's rejection of her latest claim. That application was dismissed. She then made a further application in February 1999 to remain on the basis of her marriage, relying also on Article 8 of the Convention (although at this time the Human Rights Act 1998 had not come into force). That application was not determined for over three years. There was then a successful appeal by her to the adjudicator, followed by an unsuccessful appeal by the Secretary of State to the IAT, the decision on which was given in August 2003.
JUDGMENT::-
Lord Justice Carnwath said that in the case of Huang v Secretary of State [2005] EWCA Civ 105, it was established that a tribunal in such a case, when exercising jurisdiction over both fact and law, was not bound by the Secretary of State's assessment of proportionality, but must form its own judgment on the issue. It was emphasised that this did not entitle the tribunal to question the merits of immigration policy, which was set by the immigration rules, under the mandate given by Parliament. An adjudicator could in a proper case allow an appeal against removal on Article 8 grounds –
"… if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the Appellant's favour, notwithstanding that he cannot succeed under the rules".
The Adjudicator and the Immigration Appeals Tribunal held that taking into account the delay and the other factors in the case, it would be disproportionate for the claimant to be removed from the UK.
Carnwath LJ referred to the case of Cooke v Secretary of State for Social Security [2002] 3 All ER 279, where Hale LJ commented on the need for the courts to take "an appropriately modest view" of their supervisory role, when dealing with such specialist tribunals.
It was also important that such appeal structures had a link to the ordinary court system, to maintain both their independence of government and the sponsoring department and their fidelity to the relevant general principles of law. But the ordinary courts should approach such cases with an appropriate degree of caution. It was quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner would have got it right.
Similar caution was advocated by the House of Lords in Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, when Lord Hoffmann criticised the Court of Appeal for interfering with the decision of the Commissioners on the interpretation of the provisions relating to overpayments.
As Lord Denning recognised, the courts of course retained a vital role as final arbiters in relation to genuine issues of law, such as the interpretation of the relevant statutes, and in relation to the overall fairness of the procedures. However, they should be cautious before interfering with decisions on matters within the special expertise and competence of the Tribunal. In this field, such matters included, not only the evaluation of the difficult and often harrowing evidence produced in support of individual claims, but more generally questions of general principle relating to the conditions in particular categories of claimant or particular countries.
Judgments on questions of proportionality in particular cases were likely to fall into the same category. Within the parameters laid down in Huang, the tribunal, against the background of its day-to-day experience, was much better placed than the courts to judge whether the circumstances of a particular case were sufficiently exceptional to justify a departure from the ordinary policy approach. That applied not only to the assessment of the circumstances of a particular applicant, but also to judgments about the management of the system by the Secretary of State.
For these reasons, Carnwath LJ would dismiss the appeal. Lord Justices Rix and Chadwick agreed.